Vail v. People — 1 Wend. 38

Majority

p. 38

Vail and others, commissioners of highways of New-Castle, ads. The People, on the relation of Palmer and Tompkins.

Headnote

On a return to a mandamus, the relator may demur or tiacannot do both, A rule both to join in demurrer and reply, is irregular.

Motion to set aside a default for not joining in demurrer. rphe defendants having made a return to an alternative man- ° , damns, the relators put in five demurrers to various portions of the return, plead four distinct pleas to other portions of the same return, and entered a rule requiring a joinder to the . rri, , r i demurrers, and a replication to the pleas. 1 he deieudants demurred to the demurrers, and on their part put in demurrers to the pleas of the relators. The relators considering the demurrer to the demurrers as no answer, treated it as a

p. 39

crallity, and entered the default of the defendants for not joining in demurrer; to set which aside this motion was made.

P. A. Jay, for defendants.

R. R. Voris, for contra.

By the Court,

The relators had a right to demur to the return made to the alternative mandamus, but they could not both demur and plead. The statute regulating proceedings on writs of mandamus, allows the relator to plead to, or traverse all or any of the material facts contained in the return. A demurrer is a plea within the meaning of the statute, and has so been holden. (16 Johns. R. 61, 65.) The whole return is to be considered as entirety, like a count in a declaration. If the facts set forth cannot be traversed or denied, the relator may demur, but he cannot dissect the return into as many parts as he sees fit, plead to some portions, and demur to the residue. The relators had no right to enter the rule requiring both a joinder and replication ; consequently, the default entered in pursuance thereof was irregular.

Motion granted, with costs.